Critics have been known to accuse us of being too hard on product liability plaintiffs and too forgiving of defendants who develop medical products. We all have our biases, especially after many collective decades of representing the latter group, but we do think the table is often tilted in favor of the former group. One
Like many of you, we spend a large portion of our professional life litigating cases consolidated in MDLs. MDLs serve a purpose in this “mass tort” world, but they also breed laziness and complacency among plaintiff lawyers who amass “inventories” of clients they’ve never met and about whose claims they know nothing in the hope
The issue of product recalls rears its head a lot in our medical device practice. Or non-recalls, to be more precise. In the unsavory world of plaintiff solicitation, we have seen, over and over again, that plaintiff firms and their “phone banks” recruit potential plaintiffs by telling them that devices that remain in their bodies
In these strangest of times, we find ourselves seeking comfort in the familiar. Many times each day, we dial the numbers of faraway loved ones, just to hear their voices (the twenty-something Drug and Device Law Rock Climber has threatened to block our number). We gravitate toward favorite foods of our childhood (we just resorted
Indulge us for a moment as we recount another airline adventure. Recently, we traveled thousands of miles to an important argument. Our first flight boarded right on time, left the gate right on time, and taxied down the runway . . . partway. Then stopped. Enter the inevitable announcement: “Ladies and gentlemen, we’re very sorry,
Late last year we published the post “Twiqbal for Defendants? Not If We Can Help It.” on the issue of whether the “plausibility” standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S 662 (2009), applied to “affirmative defenses (which we prefer to just
Contrary to rumor, we are not on the verge of changing our name to the Filter Device Litigation blog. True, we are now on a several consecutive weeks run of sharing very good IVC opinions. In fact, we will likely have two this week. The recent outbreak of good sense largely emanates from Indiana, but
We’re blogging today because of an annoyance – another of these nuisance motions filed by plaintiffs that should be skirting the border of Rule 11, but unfortunately isn’t. Our particular gripe is a motion to strike a defendant’s pleaded defenses (please don’t call them “affirmative” defenses unless they really are) because they supposedly don’t meet
In medical device product liability cases to which preemption by reason of FDA pre-market approval (“PMA”) applies, courts have consistently misinterpreted the Supreme Court’s dictum in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) − finding the plaintiff’s “parallel” violation claims waived by failure to assert in the court of appeals – as somehow
It took a while for courts to catch on that implied preemption in drug cases depends on whether the plaintiffs can present “newly acquired evidence” of a relevant risk, but the argument seems to be gaining some traction. The first case to recognize the “newly acquired evidence” argument was the First Circuit’s Marcus v. Forest